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UNITED STATES |
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SECURITIES
AND EXCHANGE |
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Washington, D.C. 20549 |
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SCHEDULE 13D |
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Electric City Corp.
(Name of Issuer)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
284868106
(CUSIP Number)
Marc E. Manly
Executive Vice President and Chief Legal Officer
Cinergy Corp.
139 E. Fourth Street
Cincinnati, OH 45202
(513) 421-9500
(Name,
Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 27, 2004
(Date
of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 284868106 |
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1. |
Names of Reporting
Persons. I.R.S. Identification Nos. of above persons (entities only) |
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2. |
Check
the Appropriate Box if a Member of a Group (See Instructions) |
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(a) |
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(b) |
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3. |
SEC Use Only |
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4. |
Source
of Funds (See Instructions) |
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5. |
Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
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6. |
Citizenship or Place of Organization |
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Number of |
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Sole
Voting Power |
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8. |
Shared
Voting Power |
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9. |
Sole
Dispositive Power |
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10. |
Shared Dispositive Power |
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11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person |
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12. |
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) o |
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13. |
Percent
of Class Represented by Amount in Row (11) |
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14. |
Type of Reporting Person
(See Instructions) |
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1. |
Names of Reporting
Persons. I.R.S. Identification Nos. of above persons (entities only) |
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2. |
Check
the Appropriate Box if a Member of a Group (See Instructions) |
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(a) |
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(b) |
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3. |
SEC Use Only |
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4. |
Source
of Funds (See Instructions) |
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5. |
Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
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6. |
Citizenship or Place of Organization |
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Number of |
7. |
Sole
Voting Power |
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8. |
Shared
Voting Power |
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9. |
Sole
Dispositive Power |
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10. |
Shared Dispositive Power |
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11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person |
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12. |
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) o |
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13. |
Percent
of Class Represented by Amount in Row (11) |
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14. |
Type of Reporting Person
(See Instructions) |
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1. |
Names of Reporting
Persons. I.R.S. Identification Nos. of above persons (entities only) |
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2. |
Check
the Appropriate Box if a Member of a Group (See Instructions) |
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(a) |
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(b) |
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3. |
SEC Use Only |
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4. |
Source
of Funds (See Instructions) |
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5. |
Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
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6. |
Citizenship or Place of Organization |
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Number of |
7. |
Sole
Voting Power |
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8. |
Shared
Voting Power |
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9. |
Sole
Dispositive Power |
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10. |
Shared Dispositive Power |
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11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person |
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12. |
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) o |
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13. |
Percent
of Class Represented by Amount in Row (11) |
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14. |
Type of Reporting Person
(See Instructions) |
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4
This Amendment No. 2 (this Amendment) to Schedule 13D, which was originally filed on July 8, 2003, and amended on March 19, 2004 (the Original Schedule 13D), relating to the Common Stock of Electric City Corp., a Delaware corporation (the Company), is being filed by Cinergy Ventures II, LLC (Cinergy Ventures), Cinergy Technologies, Inc. (Cinergy Technologies) and Cinergy Corp. (Cinergy), with Cinergy Ventures, Cinergy Technologies and Cinergy being sometimes referred to hereinafter as the Reporting Persons. Except as set forth in this Amendment, the information contained in the Original Schedule 13D has not changed.
This Amendment is being filed in connection with a sale of a warrant to purchase 1,500 shares of Series E Preferred Stock of the Company by Cinergy Ventures to John Donohue (the Warrant Sale Transaction). A copy of the Form of Assignment Form between Cinergy Ventures II, LLC and John Donohue is filed with this Amendment as Exhibit 99.3 and is incorporated herein by reference.
Item 4. |
Purpose of Transaction |
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Cinergy Ventures sold a warrant to purchase 1,500 shares of Series E Preferred Stock of the Company for $1,000.00. |
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Cinergy Ventures expects to evaluate on a continuing basis its goals and objectives with respect to its investment in the Company, the Companys business operations and prospects, and general economic and equity market conditions. Based on such evaluations, Cinergy Ventures may from time to time in the future (1) convert the shares of Series E Preferred Stock beneficially owned by it into Common Stock, or (2) exercise its Warrants to purchase shares of Common Stock. Cinergy Ventures may make additional purchases of Common Stock or other securities of the Company at any time or from time to time. Cinergy Ventures may also at any time or from time to time, subject to the terms of its agreements with the Company and the other investors described below, sell all or a portion of the Common Stock or other securities of the Company that it beneficially owns either in private placements, in the open market |
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pursuant to Rule 144 or registrations effected by the Company for Cinergy Ventures and/or the other investors pursuant to the Amended and Restated Investor Rights Agreement, and/or pursuant to available exemptions from the registration requirements of the Securities Act of 1933. |
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Item 5. |
Interest in Securities of the Issuer |
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(a)-(c) As of December 27, 2004, prior to the completion of the Warrant Sale Transaction, Cinergy Ventures beneficially owned 4,227,808 shares of Common Stock of the Company, on an as converted basis, through the following holdings: |
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32,619 shares of Series E Preferred Stock, which are convertible into shares of Common Stock on a 100-for-one basis; |
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1,500 Warrants to purchase 1,500 shares of Series E Preferred Stock; |
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Warrants to purchase 684,375 shares of Common Stock; |
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Options to purchase 58,334 shares of Common Stock; and |
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73,199 shares of Common Stock. |
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In connection with the Warrant Sale Transaction, the Company sold a warrant to purchase 1,500 shares of Series E at a price of $1,000.00. |
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Following the completion of the Warrant Sale Transaction, Cinergy Ventures beneficially owns 4,077,808 shares of Common Stock of the Company, on an as converted basis, through the following holdings: |
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32,619 shares of Series E Preferred Stock, which are convertible into shares of Common Stock on a 100-for-one basis; |
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Warrants to purchase 684,375 shares of Common Stock; |
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Options to purchase 58,334 shares of Common Stock; and |
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73,199 shares of Common Stock. |
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Based on the 41,613,721 outstanding shares of Common Stock of the Company as of September 30, 2004, as reported in the Companys Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2004, the shares of Common Stock beneficially owned by Cinergy Ventures represent approximately 9.0% of the Companys outstanding shares of Common Stock. Cinergy Ventures has the sole power to vote or direct the vote and to dispose or direct the disposition of each of the 4,077,808 shares of Common Stock beneficially owned by it. No other person has the sole or shared power to vote or direct the vote or dispose or direct the disposition of any shares of Common Stock beneficially owned by Cinergy Ventures.
(d) No person other than Cinergy Ventures has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock beneficially owned by Cinergy Ventures.
Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
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Cinergy Ventures continues to be a party to the Amended and Restated Stockholders Agreement, Amended and Restated Investor Rights Agreement and Amended and Restated Stock Trading Agreement as described in the Original Schedule 13D and included as exhibits thereto. |
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Item 7. |
Material to Be Filed as Exhibits |
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99.1 |
Schedule of Directors and Executive Officers of the Reporting Persons. |
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99.2 |
Joint Filing Agreement (incorporated by reference to Exhibit 7 of the Original Schedule 13D). |
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99.3 |
Form of Assignment Form between Cinergy Ventures II, LLC and John Donohue. |
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
January 28, 2005 |
CINERGY VENTURES II, LLC |
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By: |
/s/ Julia S. Janson |
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Name: Julia S. Janson |
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Title: Corporate Secretary |
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CINERGY TECHNOLOGIES, INC. |
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By: |
/s/ Julia S. Janson |
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Name: Julia S. Janson |
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Title: Corporate Secretary |
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CINERGY CORP. |
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By: |
/s/ Julia S. Janson |
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Name: Julia S. Janson |
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Title: Corporate Secretary |
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Exhibit 99.1
The name, business address, present principal occupation or employment and the name, principal business address of any corporation or other organization in which such employment is conducted, of each of (i) the members of the board of directors and executive officers of Cinergy Ventures II, LLC, (ii) the members of the board of directors and executive officers of Cinergy Technologies, Inc., and (iii) the members of the board of directors and executive officers of Cinergy Corp. are set forth below. Unless otherwise indicated, the business address of each of the directors or executive officers is that of Cinergy Corp. at 139 E. Fourth Street, Cincinnati, OH 45202. Unless otherwise indicated, each occupation set forth opposite an individuals name refers to the individuals occupation at Cinergy Corp.
(i) Cinergy Ventures II, LLC
Name |
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Capacity in Which Serves at |
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Principal Occupation |
Michael J. Cyrus |
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Executive Vice President |
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Executive Vice President and Chief Executive Officer of the Regulated Business Unit |
R. Foster Duncan |
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Executive Vice President |
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Executive Vice President and Chief Executive Officer of the Commercial Business Unit |
Lynn J. Good |
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Vice President and Comptroller |
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Vice President and Controller |
William J. Grealis |
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President |
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Executive Vice President |
Julia S. Janson |
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Secretary and Chief Compliance Officer |
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Secretary and Chief Compliance Officer |
Marc E. Manly |
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Executive Vice President and Chief Legal Officer |
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Executive Vice President, Chief Legal Officer and Assistant Secretary |
Theodore R. Murphy II |
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Senior Vice President and Chief Risk Officer |
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Senior Vice President and Chief Risk Officer |
Frederick J. Newton III |
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Executive Vice President and Chief Administrative Officer |
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Executive Vice President and Chief Administrative Officer |
Ronald R. Reising |
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Vice President and Chief Procurement Officer |
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Vice President and Chief Procurement Officer |
James L. Turner |
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Executive Vice President and Chief Financial Officer |
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Executive Vice President and Chief Financial Officer |
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(ii) Cinergy Technologies, Inc. |
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Name |
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Capacity in Which Serves at |
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Principal Occupation |
William J. Grealis |
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Director and President |
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Executive Vice President |
James E. Rogers |
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Director |
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President, Chief Executive Officer and Chairman |
James L. Turner |
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Director and Executive Vice President and Chief Financial Officer |
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Executive Vice President and Chief Financial Officer |
Michael J. Cyrus |
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Executive Vice President |
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Executive Vice President and Chief Executive Officer of the Regulated Business Unit |
R. Foster Duncan |
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Executive Vice President |
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Executive Vice President and Chief Executive Officer of the Commercial Business Unit |
Lynn J. Good |
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Vice President and Comptroller |
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Vice President and Controller |
Julia S. Janson |
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Secretary and Chief Compliance Officer |
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Secretary and Chief Compliance Officer |
Marc E. Manly |
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Executive Vice President and Chief Legal Officer |
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Executive Vice President, Chief Legal Officer and Assistant Secretary |
Theodore R. Murphy II |
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Senior Vice President and Chief Risk Officer |
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Senior Vice President and Chief Risk Officer |
Frederick J. Newton III |
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Executive Vice President and Chief Administrative Officer |
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Executive Vice President and Chief Administrative Officer |
Ronald R. Reising |
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Vice President and Chief Procurement Officer |
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Vice President and Chief Procurement Officer |
(iii) Cinergy Corp.
Name |
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Capacity in Which |
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Business Address |
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Principal Occupation |
James E. Rogers |
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Director |
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139 E. Fourth St. |
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President, Chief Executive Officer and Chairman of the Board of Cinergy Corp. |
Michael G. Browning |
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Director |
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Browning Investments, Inc. |
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Chairman and President of Browning Investments, Inc. |
Phillip R. Cox |
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Director |
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Cox Financial Corp. |
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President and Chief Executive Officer of Cox Financial Corporation |
George C. Juilfs |
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Director |
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SENCORP |
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Chairman and Chief Executive Officer of SENCORP |
Thomas E. Petry |
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Director |
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The Union Central Life |
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Director of The Union Central Life Insurance Company |
Mary L. Schapiro |
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Director |
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NASD Regulation, Inc. |
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Vice Chairman of NASD and President of Regulatory Policy and Oversight |
John J. Schiff, Jr. |
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Director |
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Cincinnati Financial |
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Chairman, President and Chief Executive Officer of Cincinnati Financial Corporation and The Cincinnati Insurance Company |
Philip R. Sharp |
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Director |
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John F. Kennedy School of |
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Senior Research Fellow at Harvard Universitys John F. Kennedy School of Government |
Dudley S. Taft |
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Director |
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Taft Broadcasting Company |
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President and Chief Executive Officer of Taft Broadcasting Company |
Michael J. Cyrus |
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139 E. Fourth St. |
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Executive Vice President and Chief Executive Officer of the Regulated Business Unit |
R. Foster Duncan |
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139 E. Fourth St. |
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Executive Vice President and Chief Executive Officer of the Commercial Business Unit |
Gregory C. Ficke |
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139 E. Fourth St. |
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President, The Cincinnati Gas & Electric Company |
Lynn J. Good |
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139 E. Fourth St. |
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Vice President and Controller |
William J. Grealis |
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139 E. Fourth St. |
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Executive Vice President |
Julia S. Janson |
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139 E. Fourth St. |
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Secretary and Chief Compliance Officer |
Marc E. Manly |
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139 E. Fourth St. |
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Executive Vice President, Chief Legal Officer and Assistant Secretary |
Theodore R. Murphy II |
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139 E. Fourth St. |
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Senior Vice President and Chief Risk Officer |
Frederick J. Newton III |
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139 E. Fourth St. |
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Executive Vice President and Chief Administrative Officer |
Kay E. Pashos |
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139 E. Fourth St. |
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President, PSI Energy, Inc. |
Ronald R. Reising |
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139 E. Fourth St. |
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Vice President and Chief Procurement Officer |
James L. Turner |
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139 E. Fourth St. |
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Executive Vice President and Chief Financial Officer |
Item 2(d): To the knowledge of Ventures, none of Ventures, Technologies or Cinergy, or any of the individuals identified in this Schedule I has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
Item 2(e): To the knowledge of Ventures, none of Ventures, Technologies or Cinergy, or any of the individuals identified in this Schedule I has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 2(f): Each of the individuals identified in this Schedule I is a citizen of the United States of America.
Exhibit 99.3
Form of Assignment Form
[To be executed upon assignment of Warrants]
The undersigned hereby assigns and transfers unto John Dohonue, whose Social Security Number is [ ] and whose record address is [ ] the rights represented by the attached Warrant Certificate with respect to 1,500 Warrants to which the attached Warrant Certificate relates, and irrevocably appoints Jeffrey Mistarz as agent to transfer this security on the books of the Company. Such agent may substitute another to act for such agent.
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Signature: |
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(Signature must conform in all respects to name of |
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Signature Guarantee: |
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Date: |
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